Robertson v. Yazoo & M. V. R. Co.

• Decision Date: 27 February 1928
• Docket Number: 26742
• Citation: 118 So. 181,152 Miss. 333
• Parties: ROBERTSON v. YAZOO & M. V. R. CO. [*]
• Court: Mississippi Supreme Court

118 So. 181

152 Miss. 333

ROBERTSON v. YAZOO & M. V. R. CO. ^[*]

No. 26742

Supreme Court of Mississippi

February 27, 1928

Suggestion of Error Overruled Oct. 8, 1928.

(In Banc.)

1 NEGLIGENCE. "Invitation" is inferred where there is mutual advantage, while "license" is inferred where object is pleasure to person using it.

An invitation to go on premises of another is inferred where there is some common interest or mutual advantage, while license is inferred where object is mere pleasure or benefit to person using it (citing Words and Phrases, Second Series "Invitation").

2 AUTOMORILES. Motorist injured in collision with switch stand guards while traveling on roadway on railroad's premises was "licensee," and railroad was not liable.

Automobile passenger injured when automobile collided with railroad switch stand guards, located on or near roadway on railroad's premises paralleling railroad tracks, which way was graveled and was made for people desiring to load and unload goods, was a "licensee" and not an invitee, and, since she was not willfully or wantonly injured by any act or failure to act on part of railroad company, it was not liable.

HON. E. L. BRIE, Judge.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Action by Mrs. Estelle Robertson against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff for part of sum demanded, plaintiff appealed, and defendant filed cross-appeal. Reversed and rendered.

Judgment reversed.

Brunini & Hirsch, Harry K. Murray, and James D. Thames, for appellant.

We are asking for an affirmation of the liability of the railroad company and the reversal and remanding of this case to settle the amount of the damages. The two instructions refused Mrs. Robertson, should have been granted, and their refusal resulted in the small verdict in this case. Those two instructions are in the words following:

(a) "The court instructs the jury to find for the plaintiff and to assess her damages at such sum as the evidence in the case shows she has sustained" and, (b) "The court instructs the jury that the fact that the said embankment was constructed at the request of the citizens of Utica and the fact that it was constructed to take care of the shipment of vegetables and other truck products from Utica do not in the slightest degree constitute a defense to this action."

Was the fact that the embankment was constructed at the request of citizens of Utica, to take care of the shipment of vegetables and other truck products from Utica, a defense to this action in the slightest degree? To ask the question is to answer it. To say the least this defense carried great weight with the jury in the amount of damages it awarded.

Taking the appeal of the railroad company as a cross-appeal, we submit that it was argued away from the facts, and the law of this case. The railroad company, appreciating that it was mistaken in contending that Mrs. Robertson was a trespasser, falls back on the idea that she might be a "bare licensee." Several cases are cited where the facts show that the complaining party was a bare licensee, and the railroad company quotes from Allen v. Y. & M. V. R. R. Co., 111 Miss. 276. That part of the opinion which it quotes is fatal to its position. We offer it to sustain our position, to-wit: That whether or not that part of Depot street on the embankment and where the switch stand and guards were placed was railroad property or was property of the public. The facts in this case show that the railroad company at least impliedly invited, if it did not expressly invite, induce and lead the public generally to come upon its premises. The fact is that the railroad company never, at any point in the examination of the witnesses for the plaintiff or the defendant, undertook to show that it did not impliedly invite the public to use that part of the street or highway which was on the embankment, and every witness who testified relative to that roadway, showed that it was constantly and daily used by the public without let or hinderance. We have no hesitation in saying that the conduct of the railroad company in this instance amounted to more than an invitation to the public to use this street, and that it was, in fact, a dedication of this street to the public use. See Lepnick v. Gaddis, 72 Miss. 200, 16 So. 213; 26 L. R. A. 686, 48 Am. St. Rep. 547.

Hirsch, Dent & Landau, Chas. N. Burch and H. D. Minor, for appellee.

The court will observe that the plaintiff plants her right of recovery on the theory that defendant had placed an obstruction in a highway or street. The evidence discloses without conflict that the way on the dump is in no sense a highway or street. See 7074, Hem. Code 1917; Adkins v. G. & S. I. R. R. Co., 117 Miss. 131; Covington Co. v. Collins, 92 Miss. 330; A. & W. R. R. Co. v. A. B. & A. R. R. Co. (Ga.), 54 S.E. 736; Wiggins v. Skeggs (Ala.), 54 So. 756.

There is no evidence to disclose that the defendant knew that this was being used occasionally or generally by the public except for railroad purposes. There is no evidence that the railroad expressly or impliedly granted a license to the public to use this way in going from one part of the street to another part of the same Street. The plaintiff's husband perhaps made a mistake, when he left a well graveled and lighted street, forty feet wide, and drove on this private way on this embankment, without the slightest knowledge of its condition, and without invitation or inducement, to serve his own purpose. Under this State of facts, we submit, that both plaintiff and her husband were trespassers. Byars v. Davis, 131 Miss. 13; 20 R. C. L. 64.

If we are mistaken in our contention that plaintiff and her husband were trespassers, then, we submit, they were bare licensees, and defendant owed them no duty except not to wilfully or wantonly injure them. I. C. R. Co. v. Arnola, 78 Miss. 787; R. R. Co. v. Cox, 132 Miss. 571; Rabe v. Ch. & O. R. R. Co., 227 S.W. 166; Pollock on Torts, sec. 426; Indian Ref. Co. v. Mobley, 134 Ky. 822, 24 L. R. A. (N. S.) 467, 121 S.W. 657; Allen v. Y. & M. V. R. R. Co., 111 Miss. 276; Redigan v. B. & M. R. R. Co., 14 L. R. A. 276.

Mere creation of way implies no invitation to plaintiff to use way. See 29 Cyc. 454; Montgomery v. R. R. Co., 72 S.W. 617; Bennett v. L. & N. R. R. Co., 102 U.S. 585; Cleveland Ry. Co. v. Powers, 88 N.E. 1073; Plummer v. Dill, 31 N.E. 128; Dixon v. Swift, 56 A. 761; 20 R. C. L. 69. The mere fact that the defendant did not see fit to keep travellers off the premises did not give them a right of way over such premises. 22 R. C. L. 936.

Argued orally by Jno. Brunini, for appellant, and R. L. Dent, for appellee.

OPINION

MCGOWEN, J.

Mrs. Estelle Robertson, plaintiff in the court below, appellant and cross-appellee here, filed her declaration to recover damages alleged to have been sustained by her as the result of a collision of a Ford car with a railroad switch stand and the guards thereof, located on or near a roadway paralleling defendant's cross-appellant and appellee here, house track in its railroad yards, in the town of Utica, Hinds county, Miss. She alleged that the switch stand and the guards thereof constituted an obstruction in the street of the town. Defendant interposed plea of general issue with notice of special matter, the circumstances under which the house track and way were constructed. The case was submitted to a jury, and there was a verdict and judgment for the plaintiff, Mrs. Estelle Robertson, in the sum of two hundred dollars. Mrs. Robertson appealed, and thereafter the railroad company filed what is termed a "cross-appeal." Mrs. Robertson contends the case should be reversed and remanded because she was entitled to a peremptory instruction on the question of damages, which the court below had refused, thereby diminishing her damages. The railroad company contends here that it was entitled to a peremptory instruction because the plaintiff, at the time, was a licensee or trespasser, and not an invitee, and that the railroad company owed her no duty save not to willfully and wantonly injure her. Other causes for reversal are assigned, but they will not be noticed here for the reason that we have reached the conclusion that the case may be disposed of on the issue thus sharply presented.

The facts are these: Mrs. Robertson and her husband and their children, together with a sister, traveled in a Ford coupe to Hazlehurst on Sunday, October 31, 1926, on the way passing through Utica. On the return trip that evening when within five or six miles of Utica the lights of their car were discovered to be dim, and when they reached Utica they...